Judge's ruling keeps DeLay on ballot

Published 5:30 am, Thursday, July 6, 2006

AUSTIN -- A federal judge ruled today that Republicans cannot replace former U.S. Rep. Tom DeLay on the ballot for the 22nd Congressional District race.

U.S. District Judge Sam Sparks, a Republican appointee, ruled that DeLay must appear on the Nov. 7 ballot as the GOP nominee for the congressional seat that he abandoned last month.

Sparks said DeLay could "withdraw'' from the race under Texas election law, but that still would not allow the Republicans to replace him on the ballot.

DeLay had sought to have state Republican Chair Tina Benkiser declare him ineligible by moving from Sugar Land to his condominium in Virginia. But Sparks said that would not make him ineligible because the requirement under the Constitution is whether DeLay is an inhabitant of Texas on election day.

Sparks said contradicting evidence raised questions about whether DeLay planned to remain a resident of Virginia, but he said that did not matter because DeLay could not say where he would be on election day.

"The court holds that allowing Benkiser to declare DeLay ineligible at this time would amount to a de facto residency requirement in violation of the United States Constitution,'' Sparks said in his opinion.

Sparks' ruling halts the process of replacing DeLay on the ballot, but the GOP has appealed the decision to the 5th Circuit Court of Appeals. James Bopp Jr., a GOP lawyer said the party will ask that the case be rendered this month.

If the Republicans lose on appeal, DeLay will have to decide whether to campaign for an office from which he already has resigned.

DeLay, dressed in shorts and a baseball cap, answered the door at his Sugar Land house this afternoon, but declined to talk with a Chronicle reporter.

"I don't do this (interviews). Not at my house," he said as he closed the door. "Goodbye."

Earlier in the day, his daughter, Dani DeLay Ferro, issued a statement on his behalf.

"Tom DeLay looks forward to the correct decision being rendered by the 5th Circuit Court of Appeals. As a resident of Virginia, he cannot lawfully be on the ballot in November. It is unfortunate that the voters of the 22nd District of Texas are the ones who bear the brunt of Judge Sparks' ill-advised decision, but it is highly likely that it will be overturned and the voters will have a Texas 22 Republican on the ballot who will defeat Nick Lampson," she said.

When he announced his resignation, DeLay said he believed he could win re-election but thought he would be a drag on other Republican candidates for office because Democrats would use him as a lightening rod to raise money and attack the GOP in general. So he resigned and dropped his re-election bid.

Precinct chairs in the four counties of the 22nd District already have started the process of selecting a new nominee.

The Democratic nominee is former U.S. Rep. Nick Lampson of Houston. The Libertarian Party is represented by Bob Smither of Friendswood.

DeLay already had won the Republican nomination for re-election to his district when he resigned from the U.S. House on June 9. Benkiser declared DeLay ineligible because he had become a resident of Virginia, and she started the process of replacing DeLay on the ballot.

The Democrats said DeLay's eligibility is determined by the U.S. Constitution as to which state DeLay is an inhabitant of on election day, Nov. 7. They said DeLay also could not withdraw from the race because state law does not allow a party's nominee to withdraw when another political party also has a nominee.

Republicans argued that Benkiser could declare DeLay ineligible because the Constitution allows the states to control the manner and means of the election. They said that by changing his official residence to Virginia, DeLay had made himself ineligible for the Texas office, even though he still maintained a home in Sugar Land.

DeLay last year had to give up his position as House majority leader after being indicted in Austin on campaign-finance related charges. DeLay said that investigation was politically motivated by Democratic District Attorney Ronnie Earle.

DeLay became a focus of national news reports in the wake of the Jack Abramoff influence peddling scandal. DeLay has maintained his innocence, but two of his former aides have pleaded guilty to federal charges.